NEW YORK - A federal appeals court declined Tuesday to review its recent ruling throwing out a voter-approved ban on same-sex marriage in California, a move that means the case is probably headed to the Supreme Court along with a case from Massachusetts.
The US Court of Appeals for the Ninth Circuit, in San Francisco, said that an appeal of its February ruling by opponents of same-sex marriage failed to get a majority of the full circuit, so the ruling will not be reexamined. The court said the ruling would be stayed for 90 days to allow appeal to the Supreme Court.
The decision came less than a week after a federal appeals court in Boston handed a victory to supporters of same-sex marriage by ruling that a federal law declaring marriage to be solely between a man and a woman discriminated against married same-sex couples by denying them the same benefits afforded to heterosexual couples.
Like the California appeals court ruling, the one in Massachusetts took care not to contend that the Constitution backs the right of same-sex marriage. In both cases, the judges chose narrower grounds by asserting that the laws in question singled out gay couples for discrimination in ways that violated their equal protection rights as guaranteed by the Constitution.
The California case concerns a statewide referendum passed in 2008 placing a prohibition in the state constitution against marriage between two people of the same sex. The 2-1 appeals court decision that struck down the referendum, known as Proposition 8, said, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.’’
It added, “The people may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.’’
Chad Griffin, cofounder of the American Foundation for Equal Rights, the group that brought the case, called Tuesday’s ruling “yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation.’’
“The final chapter of the Proposition 8 case has now begun,’’ he said. “Should the US Supreme Court decide to review the Ninth Circuit’s decision in our case, I am confident that the justices will stand on the side of fairness and equality.’’
The Supreme Court is widely thought to be divided, 4-4, on the question of same-sex marriage, with Justice Anthony M. Kennedy considered the deciding vote. Both the California and Massachusetts rulings referred repeatedly and pointedly to two decisions by Kennedy as justifications for their reasoning.
And although many expect the Supreme Court to accept one or both of these cases, it is not obliged to do so. The requests for review are likely to arrive as early as months from now, with a review of the issue as early as next year.